equipment-portable blowers, air hoses, gas masks, and tanks of carbon tetrachloride, all brought aboard the vessel for this special purpose, and none connected with a ship's seagoing operations. Indeed, the work was so specialized that the repair yard engaged to overhaul the vessel was not itself equipped to perform it, but had to enlist the services of a subcontractor.25

At another trial liability was founded on negligence of the shipowner, rather than unseaworthiness of the vessel, in that the shipowner failed to ascertain that the independent contractor was competent to perform the inherently dangerous operation.26

Further illustrating the importance of the worker's status, the case of McDaniel v. M/S LISHOLT 27 is of interest. That case considered whether the warranty of seaworthiness applied to a shore based fireman. M/S LISHOLT was receiving oil from the shore in the Panama Canal Zone when some of the oil overflowed causing a fire on board. The shoreside fire department boarded LISHOLT and extinguished the fire. McDaniel, a member of the fire department, was assigned as a fire watch. His main duty was to insure that the fire did not re-ignite and to report any re-ignition to the fire department if assistance was required. When the libelant came on duty some eight hours after the fire had been extinguished, he noticed an odor in the refrigerator room. McDaniel reported this fact to a chemist and a stevedore foreman who were on board. Thereupon they went below to the refrigerator room. noted that the odor was now stronger and it was suggested that they leave the space. Immediately after their departure there was an explosion in that area, resulting in the death of several persons and injury to the fireman. The Court of Appeals held that the fireman did not come within the scope of the warranty because he was not performing a duty within the traditional or customary scope of activity of the crew. 28 The court conceded that LISHOLT was unseaworthy, but this condition was the reason the fireman was aboard.

It was

25. Id. at 617, 618, 1959 A.M.C. at 591. Accord, Filipek v. MooreMcCormack Lines and Eastern Rigging Corp., 258 F.2d 734 (2nd Cir. 1958), 1958 A.M.C. 2369, where an employee, a professional boom tester, was injured when a kingpost snapped. The court found no warranty of seaworthiness-because the work was not traditionally done by the crew. Shipowner not negligent as injury was caused by latent defect of kingpost not discoverable by reasonable inspection.

26. 302 F.2d 840 (2d Cir. 1962), 1962 A.M.C. 2342. 27. 257 F.2d 538 (2d Cir. 1958), 1958 A.M.C. 1832.

28. See Tarkington v. Amer. Pres. Lines Ltd., 1955 A.M.C. 114 (N.D. Cal. 1954), where U.S. Customs Officer searching for contraband held not within the scope of the warranty. Court stated at p. 115, "Searching for contraband is not seamen's work."

After reading the above cases the reader may be interested in how the shipowner protects himself against the financial losses that result from the money judgments against him when the negligence or unsafe operations of a stevedore or repair contractor renders his ship unseaworthy. For example, it was noted in Lawlor that the negligence of the contractor was responsible for the injury. Actually, the owner of MOBILFUEL was reimbursed by Lawlor's employer for any damages he had to pay to Lawlor.29

Present law gives the shipowner the right to be reimbursed under the terms of a stevedoring or ship repair contract for judgments against him as a result of the contractor's negligence or unsafe practice in performing its services where the contract contains an indemnity clause. 3o The usual clause provides that the contractor shall be responsible for and hold the shipowner harmless against all lawsuits and claims for bodily injury and death of persons occasioned either in whole or in part by the negligence or fault of the contractor in performance of the contract. Even if an indemnity clause is not in the service contract, it has been held that its absence will not bar the shipowner from recovery over against the contractor, because each contract carries with it an implied warranty that the contractor will perform his services for the customer vessel with professional care and skill.81

A stevedore must use due care with respect to stowing cargo and use of the cargo handling equipment incident thereto.32 For example, where the service contract requires the stevedoring contractor to provide the cargo handling equipment, he is under a duty to provide reasonably safe equipment and is liable for failure to do so, irrespective of negligence.33 This duty is implied within the scope of the contract. test for indemnity liability of the contractor with respect to its equipment is whether the equipment was in fact safe and fit for its intended use. Negligence is immaterial. Assuming that a longshoreman was injured during cargo operations due to a latent defect in his

29. Supra note 20, see editor's note 1960 A.M.C. at 723.

The

30. American Stevedores Inc. v. Porello, 330 U.S. 446, 1947 A.M.C. 349 (1947); Amato v. United States, 167 F. Supp. (S.D. N.Y. 1958), 1959 A.M.C. 1181.

31. Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corporation, 350 U.S. 124, 1956 A.M.C. 9 (1956); Pinion v. Mississippi Shipping Co., 156 F. Supp. 652 (E.D. La., 1957), 1957 A.M.C. 2308.

32. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., Inc., 355 U.S. 563, 1958 A.M.C. 501 (1958).

33. Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315 (1964).

employer's equipment that rendered the customer vessel unseaworthy, the injured may bring an action against the shipowner for unseaworthiness.34 If a judgment is recovered against the shipowner, the latter would have a right of reimbursement or indemnity under the service contract against the injured's employer for failing to provide reasonably safe equipment. For example, assume a longshoreman is injured during cargo operations due to a latent defect in his employer's gear. This defective equipment made the customer vessel unseaworthy, and the injured longshoreman can maintain and recover in an action against the shipowner for unseaworthiness. The shipowner in turn has a right of indemnity against the injured longshoreman's employer for failing to provide reasonably safe equipment.

In summary, a land based employee when working on a vessel may be entitled to the same warranty of seaworthiness as a member of the

Whether he is entitled to this warranty depends on whether he is doing work thought to be performed traditionally by crew members. If this condition is met, then the land based worker is entitled to the warranty of seaworthiness. The shipowner is obligated to furnish a vessel and appurtenances reasonably fit for their intended use, not an accident free ship.35 In those cases where gear is in proper condition but is negligently used by the longshoremen, the shipowner is not liable for their injury.36 Also, where the lack of due skill on the part of the independent contractor makes the ship unseaworthy, the shipowner has the right to be indemnified by the contractor against any judgment he must pay to the contractor's employee. The shipowner's right arises from an implied warranty by the service contractor to use due professional skill.

STATUS OF VESSEL

The Supreme Court has held that a land based worker engaged in work traditionally performed by seamen is entitled to the warranty of seaworthiness only when the vessel is in active navigation. The leading case in this area is West v. United States.37 This case stands for the proposition that no warranty of seaworthiness is implied where the vessel is not in active maritime service. In this case SS

34. Infra note 38.

35. Mitchell v. Trawler RACER, Inc., 362 U.S. 539, 1960 A.M.C. 1503 (1960).

36. Phipps v. Holland-America Line, 259 F.2d 143 (9th Cir. 1958), 1959 A.M.C. 612.

37. 361 U.S. 118, 1960 A.M.C. 15 (1959).

MARY AUSTIN, after being laid up for several years, was activated. To accomplish the activation, she was towed from Norfolk to Philadelphia for the necessary overhaul and repair. During the overhaul, West was injured while working inside a low pressure cylinder of the main engine. A loose-fitting pipe plug hit West when a fellow employee turned on the water in the line. West asserted that MARY AUSTIN was unseaworthy and sought recovery under the Sieracki doctrine. The court, after noting the extensive work that was the subject of the repair contract, concluded that the reason the ship was in the repair yard was to make her seaworthy. Accordingly, it could not be said that the shipowner held the vessel out as being seaworthy. In setting down criteria to determine whether a vessel was in navigation, the court stated:

It would appear that the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous shore-based workmen is doing on shipboard at the moment of injury .... We, therefore, do not believe that the Sieracki line of cases is applicable,

In the subsequent case of Roper v. United States,39 longshoremen were employed to unload grain from a vessel that had been in the mothball fleet for several years. In 1954 the holds of the SS HARRY LANE were utilized for the storage of grain. After the vessel was loaded, she was towed back to the reserve fleet where she remained for two years. In 1956 the wheat was sold and HARRY LANE was towed back to the grain elevator for unloading. During discharging operations a longshoreman was hurt by a piece of equipment that extended into the hold from the elevator, called a marine leg. The court specifically did not decide the question of whether the shoreside equipment was within the warranty.40 It noted however that the vessel was not in navigation, and considered that the status of the vessel was the important factor in this case rather than the status of the person performing the work or of the equipment. Therefore, assuming that a workman is performing Sieracki type work, as in Roper, he is not entitled to the warranty of a seaworthy ship unless that ship is in active maritime service.

38. Id. at 122, 1960 A.M.C. at 18.

39. 368 U.S. 20, 1961 A.M.C. 2499 (1961).

40. But cf. Alaska Steamship Co. v. Petterson, 347 U.S. 396, 1954 A.M.C. 860 (1954), where the Supreme Court held that the shipowner was liable for an injury to a longshoreman where a snatch block brought on board the vessel by independent contractor parted, citing the Sieracki and Hawn cases.

The principles of West were applied by the trial court in a case concerning the injury of a repairman aboard USS WHETSTONE (LSD 27). In 1960 WHETSTONE was undergoing an extensive overhaul which was to take more than two months to complete. In order to remove a turbine cover from the engine room, it had been necessary to cut a hole in the flight and tank decks. While Dawson was so engaged in removing the cover, his fellow employees were performing hydrostatic tests on the tanks which put a list on the ship. As a result, a welding machine on the flight deck rolled through the man-made holes and fell to Dawson's working area, causing his injury. The trial court found from the evidence that Dawson was a Sieracki seaman, but also concluded that WHETSTONE was not in active maritime service. Evidence considered by the court relating to the vessel's status was:

a. The contract cost to complete the overhaul was $900,000.

b. WHETSTONE'S boilers were dismantled and her turbines were opened and removed.

c. Electricity, water and sanitary services were supplied from shoreside, because the vessel's own systems were dismantled.

d. All electronics, electrical and communication facilities were either removed or undergoing substantial repair.

e. All the main pumping systems and evaporating equipment were overhauled.

f. Sections of the hull were cut out and replaced as well as certain portions of bulkheads throughout the vessel.

g. The ship could not be navigated under her own power on the date of the accident.

h. The ship could not be towed safely to sea because work on her ballast and fuel tanks had reduced her stability.

From the above factors the court, in denying recovery against the United States, concluded that WHETSTONE was undergoing major overhaul and was not in active maritime service. Consequently, her owners were not legally required to furnish a seaworthy ship to repair workers.

INVESTIGATION OF SHOREWORKERS'

SHIPBOARD INJURIES

A. Shipyard Workers

One problem for Commanding Officers from an investigation standpoint is being able to ascertain that a civilian worker has been injured. Where ship's work is given to the repair facility, those particular areas of the ship involved may

41. Dawson v. United States, 1962 A.M.C. 2203 (D.C. Ore. 1962).

be under the control of the contractor. This is one of the reasons that ship's division officers should make routine rounds of their spacesnot to "ride herd on the yard birds," but to be alert to minor accidents that may be unreported. In those accidents that are reported, it is not for the Commanding Officer to determine whether the Navy is under an obligation to furnish a seaworthy ship. That is a question of law. However, all the facts and circumstances surrounding the incident should be developednot just whether the Navy was negligent. If this article may serve one purpose, it should be to show investigating officers that negligence is not the only standard by which liability is measured in the maritime personal injury field. Thus, if initial investigation of a shoreworker's injury shows no Navy negligence, the investigation should not be terminated until all facts have been developed, particularly on the issue of seaworthiness. For example, let us assume that shoreworkers are repairing a pump when it explodes for no apparent reason. It is suggested that the following facts should be developed by the investigating officer, in addition to matters concerning Navy negligence, if any: 42

1. Name of manufacturer of the pump, its age, model, and serial number.

2. Ascertain if a blueprint or drawing is available of the mechanism that failed.

3. Date the pump was last overhauled, and by whom. 4. Cause of the explosion.

5. The status of the vessel. The investigating officer should inquire into the following matters:

(a) Overall cost and nature of the repairs or alterations.

(b) Dates of commencement and termination of
the repair period.

(c) With reference to the date of the accident:
(1) Were shipboard electrical, water and sani-
tary services provided by the contractor?
(2) Ability of ship to maneuver under her own
power.

(3) Status of ship's machinery, engineering plant
and auxiliaries.

(4) Percentages of repair work completed and

remaining incomplete.

(5) Major items of work incomplete. The cognizant Industrial Manager and the ship's engineering officer should be able to provide most of this information.

6. Contributory negligence of the injured person." (Continued on page 26)

42. For additional suggestions see Deutsch, Preliminary Investigative Procedure in Collision and Injury Cases Afloat, JAG J., June 1955, p. 3.

43. Contributory negligence in a maritime personal injury case does not bar recovery, although it is considered in the diminution of the amount of recovery. The MAX MORRIS, 137 U.S. 1 (1890).

T

O THOSE NAVAL Reserve veterans who have completed their military obligation and are returning to the "Navy Team", and to those junior and senior officers of the Naval Reserve on inactive duty, who are continuing the "Navy Habit", the following promotion information is presented as a key to performance and improvement in professional qualification.

From January to June each year, the Naval Reserve selection boards for promotion of inactive duty reserve officers are in session. Information on promotion zones and convening dates of selection boards is promulgated by means of a BuPers Notice published annually usually in October. (BuPers Notice 1412). For ready reference, however, "The Naval Reservist" (Nav-Pers 15653) with each December issue contains convening dates of boards and promotion zones for various grades for the current fiscal year. Normally, members of drilling units receive their copies at the Training Cen

Nondrilling members of the Reserve receive individual copies at their home address. To be eligible for promotion under the Reserve Officer Personnel Act of 1954, as amended, a naval reserve officer must be in an active status, and if formerly on the inactive status list, he must be off the list for one full year following the date of removal from same. To remain in an active status, 12 retirement points must be earned during each anniversary year, exclusive of the 15 gratuitous points for being a Reservist. Also, an officer must have earned by 30 June of the preceding year in which considered an average of 12 promotion points per year in grade with a maximum of 72 points. The Reserve Officer Recording Activity at Omaha, Nebraska, provides this information to the Bureau of Naval Personnel. Official lists of all eligible officers are then submitted to the respective selection boards regardless of the condition of an officer's records. Thus, missing

*Commander Arthur A. Cohen, USNR-R, is in the private practice of law in Newport, Rhode Island. He is Administrative Officer of Naval Reserve Harbor Defense Division 1-2, Newport, and Secretary of the Newport Chapter of the Naval Reserve Association. A holder of the Purple Heart, Commander Cohen served on active duty in Torpedo Boats in the South Pacific from 1942-47, and in a legal capacity in the THIRD Naval District from 1951-53.

records do not automatically disqualify. An officer who fails to meet the requirements of eligibility will not be included and has failed of selection.

The selection board, convened by the Navy Secretary's precept, performs its duties of selection under the provisions of Title 10, U.S. Code. The board compares the record of each officer with the records of all other eligible officers. All are evaluated on the basis of past performance as reported by their reporting seniors and are further evaluated as to their qualification to serve in the next higher grade.

Promotion is not a reward for past service; rather, it is an advancement based on demonstrated qualification for service in the next higher grade. Performance is always the primary factor in promotion. An officer's record, including his civilian occupation, is considered in measuring performance. Evidence of performance or achievement in civil and community affairs is valuable information for mobilization planning and also provides additional guidance to various boards. The Navy's primary means of recording such information on readily identifiable documents are the Annual Qualifications Questionnaire (NavPers 319), which is forwarded to the home address of each reservist at or shortly after the end of each fiscal year, and the Report of Fitness of Naval Reserve Officers on Inactive Duty (NavPers 937), which is an objective report completed by a commanding officer of the individual concerned. The obverse side of the Questionnaire has space for certain specific data. The reverse side may be used as a yearly resumé of important personal, civil, and community accomplishments. Another method of recording is by the officer or his commanding officer forwarding an official letter through the chain of command containing a summarization or condensation of accomplishments, not previously recorded, for inclusion in the officer's official record. The material should be concise in form and readily lend itself to board review. However, an important fact to remember is that even though all the promotion points possible have been earned or that all drills were attended or all periods of active duty for training were taken, this does not automatically

result in selection. These factors enhance an officer's record but do not guarantee his selection. In general, failure of selection may be attributed to the fact that, within the number ceiling set up by the Secretary of the Navy, an officer's record did not compare favorably enough with those of his contemporaries to permit his selection.

When the board finishes its selection, it then becomes a Naval Examining Board and passes on the professional qualifications for promotion of the selected officers, subject to the completion of promotion points or such other qualifications as the Secretary of the Navy may prescribe. Actually, the Examining Board function is performed at the same time as the selection phase and then formalized by a vote after the selections are made. The code requires that all Reserve selection boards will be composed of at least 5 members and that not less than a majority of the total membership must concur in each recommendation made by the board.

Those officers who have been recommended for promotion will be individually advised by the Chief of Naval Personnel of the additional requirements, if any, to complete professional qualifications. These requirements will be determined as follows:

1. (a) For Promotion to the Grade of LTJG (automatic-no selection board). An average of 12 promotion points for each 6 months' service in the grade of ensign as computed from date of rank is required. Since an ensign is currently eligible for temporary promotion 18 months after his date of rank, the maximum number of points required for qualification is 36. If the officer meets these qualifications, promotion is automatic. No formal selection procedure is required. (b) For Promotion to the Grade of LT, LCDR, or CDR. An average of 24 promotion points for each year in grade is required. In no case will more than 144 promotion points be required. Years in grade are computed from 1 July following the date of rank (or date of rank, if it be 1 July) to the end of the fiscal year in which selected for promotion. (For special cases in the computation of years in grade, refer to BuPersInst 1570.4A for the many variations listed.)

(c) For Promotion to the Grade of Captain. Officers are given the option to qualify by earning promotion points in the amount specified in subparagraph 1(b) above; or by satisfactory completion in the grade of commander of one of the following 6 categories of courses:

(1) Military Planning, NWC 18, Naval Operations, NWC 19, and Strategic Planning, NWC 20. These courses provide 18, 18, and 36 points, respectively, and they may be procured by official letter addressed to the President, Naval War College, Newport, Rhode Island.

(2) National and International Security Organization, NWC 14, and Command Logistics, NWC 15. Point evaluations are at 18 and 27 points, respectively, and procurement is at the Naval War College above; (3) International Relations, NWC 17, 54 points and procured at the Naval War College;

(4) International Law, NWC 16, 54 points and procured as above;

(5) Economics of National Security, ICAF, 48 points. This course may be obtained by letter, via official channels, to the Commandant, Industrial College of the Armed Forces, Fort Lesley J. McNair, Washington, D.C., 20315.

(6) Foundations of National Power, NavPers 10770-A, and Navy Organization for National Security, NavPers 10721-A. Point evaluations are 24 and 10 points, respectively.

(d) For Promotion to the Grade of Rear Admiral. Selection boards constituted as naval examining boards certify professional qualification on the records. No additional professional qualification is required.

2. Promotion points are creditable:

(a) For extended active duty with 2 promotion points for each month of extended active duty;

(b) for completion of 14 days' active duty or active duty for training or attendance at 75% of the drills authorized for the unit in which enrolled, 12 promotion points;

(c) for college courses and residency in training to a maximum of 12 points per fiscal year; and

(d) for Correspondence Courses and Naval Reserve Officer School Courses, as authorized. In order to receive promotion credit for NROS courses, satisfactory completion of academic work and compliance with the minimum attendance requirement of 80% of the scheduled 20 or 40 week scheduled class are necessary.

No specific course or any number of courses is required to be taken. They need be taken only in sufficient number to provide promotion points required for qualification, supplementing the promotion points earned by other means. Officers are encouraged, however, to plan their professional study as outlined in the recommended official professional study plan as set forth in BuPersInst 1570.4A of 21 November 1963 in order to enhance their mobilization potential and to provide professional growth in broad areas appropriate to their grade and category. Applications for correspondence courses, with the above exceptions, should be submitted on NavPers form 992 and forwarded via official channels to the Naval Correspondence Course Center, Scotia 2, New York, 12302. Access to classified courses requires proper security clearance. Confidential courses cannot be released to the personal custody of inactive reservists for removal from a command or activity; thus, they must be worked on at a command or activity. The restrictions on Confidential—Modified Han